Application by AB
[2024] FWC 967
•15 APRIL 2024
| [2024] FWC 967 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.527F - Application for an order to stop and deal with a sexual harassment dispute
Application by AB
(SH2024/24)
| COMMISSIONER HUNT | BRISBANE, 15 APRIL 2024 |
Application for an order to stop and deal with a sexual harassment dispute
On 22 February 2024, Mr AB filed an application pursuant to s.527F of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop and deal with a sexual harassment dispute. Mr AB is employed by The Trustee for Avis & Sons Family Trust t/a Port City Meats (Port City Meats) at the time the application was made. He sought for the Commission to make an order to stop and deal with a sexual harassment dispute to be made against Mr Geoff Sorohan.
Mr AB is a minor in these proceedings and was assisted by his stepfather. Given the age of Mr AB, I issued a Confidentiality Order on 14 March 2024 [PR772343], ordering that the Applicant must not be named or identified other than by the pseudonym Mr AB.
On 22 March 2024, I held a video conference between the parties. I informed Mr Sorohan that my preliminary view was that the numerous text messages he had sent to Mr AB out-of-hours in October and November 2023 were vile and sexually inappropriate.
On 5 April 2024, I issued directions requiring all parties to file material in preparation for a hearing of this matter. The hearing was listed by video on 22 May 2024.
On 11 April 2024, Mr Sorohan emailed Port City Meats to advise he resigns from his employment. My chambers was copied into this email.
In light of Mr Sorohan’s resignation of employment, I caused my chambers to send the following correspondence to the parties.
“Dear Parties,
Reference is made to the above matter.
The Commissioner acknowledges receipt of the Applicant’s email below, requesting to move the hearing to now commence at 6:30pm. The Commissioner further acknowledges Mr Sorohan’s email sent yesterday at 6:44pm, resigning from his position with the Employer.
The Commissioner advises that for the Commission to make orders with respect to an application under 527F of the Fair Work Act 2009 for an order to stop sexual harassment, the Commission must be satisfied that s.527J(1)(b)(ii) have been met. Section 527J(1) is extracted in full below.
527J Stop sexual harassment orders
(1) If:
(a)an application made under section 527F includes an application for a stop sexual harassment order; and
(b) the FWC is satisfied that:
(i) the aggrieved person has been sexually harassed in contravention of Division 2 by one or more persons; and
(ii) there is a risk that the aggrieved person will continue to be sexually harassed in contravention of Division 2 by the person or persons;
then the FWC may make any order it considers appropriate (other than an order requiring payment of pecuniary amount) to prevent the aggrieved person from being sexually harassed in contravention of Division 2 by the person or persons.
Without considering whether the Applicant has been sexually harassed by Mr Sorohan in the past, the Commissioner’s preliminary view is that there is no future risk of the Applicant being sexually harassed by Mr Sorohan in the future if he is no longer an employee of the Employer.
The Applicant is invited to provide his views as to whether there is any future risk of sexual harassment by Mr Sorohan. If yes, please provide the reasons of your view.
If the Applicant does not consider they are at risk of being sexually harassed, he is welcome to withdraw his application.”
Through his stepfather, Mr AB declined the invitation to withdraw his application, advising that he seeks a decision to be issued.
Relevant Legislation
A person who alleges they have been sexually harassed by one or more other persons may apply to the Commission for an order to stop sexual harassment. Section 527F of the Act provides:
“527F Application for the FWC to deal with a sexual harassment dispute
(1) If a person (the aggrieved person) alleges they have been sexually harassed in contravention of Division 2 by one or more other persons (a respondent), a person referred to in subsection (2) may apply for the FWC to do either or both of the following to deal with the dispute:
(a) make an order (a stop sexual harassment order) under section 527J;
(b) otherwise deal with the dispute.
Note 1: A person has limited ability to make a sexual harassment court application unless the FWC has dealt with the dispute as mentioned in paragraph (b) and is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful (see section 527T).
Note 2: The FWC may allow an application to be amended if, for example, the applicant wishes the FWC to deal with the dispute in a way not initially applied for (see section 586).
(2) The persons are as follows:
(a) the aggrieved person;
(b) an industrial association that is entitled to represent the industrial interests of the aggrieved person.
(3) Despite paragraph (1)(a), a person referred to in subsection (2) cannot, except as provided by the regulations, apply for the FWC to make a stop sexual harassment order in relation to the dispute if the aggrieved person was a defence member (within the meaning of the Defence Force Discipline Act 1982) at the time the sexual harassment allegedly occurred.
(4) Without limiting section 609, the procedural rules may provide for the following:
(a) the making of applications under subsection (1) by:
(i) 2 or more persons of the kind referred to in subsection (2) acting jointly; or
(ii) a single industrial association that is entitled to represent the industrial interests of 2 or more aggrieved persons;
being applications made in relation to the same alleged contravention, or related alleged contraventions, of Division 2;
(b) the joinder of the following as parties to the dispute:
(i) one or more aggrieved persons in relation to alleged contraventions of Division 2;
(ii) one or more industrial associations each of which is entitled to represent the industrial interests of one or more aggrieved persons in relation to alleged contraventions of Division 2;
(iii) if an aggrieved person in relation to the dispute alleges the aggrieved person has been sexually harassed in contravention of Division 2, other than because of the operation of subsection 527E(1), by a person who is an employee or agent of another person (the principal)—the principal;
(iv) if a party to the dispute alleges another party (the principal) has contravened Division 2 because of the operation of subsection 527E(1)—an employee or agent mentioned in that subsection in relation to the principal;
(c) the withdrawal of persons as parties to the dispute;
(d) the treatment of the dispute under this Act as if there were 2 or more different disputes (instead of a single dispute), with different parties to each of the disputes.”
Section 12 of the Act stipulates that “sexually harass” has the meaning given by section 28A of the Sex Discrimination Act 1984, as produced below::
“28A Meaning of sexual harassment
(1) For the purposes of this Act, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”
The circumstances in which the Commission may make orders to stop sexual harassment are set out in s.527J of the Act, as produced below:
“527J Stop sexual harassment orders
(1) If:
(a) an application made under section 527F includes an application for a stop sexual harassment order; and
(b) the FWC is satisfied that:
(i) the aggrieved person has been sexually harassed in contravention of Division 2 by one or more persons; and
(ii) there is a risk that the aggrieved person will continue to be sexually harassed in contravention of Division 2 by the person or persons;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the aggrieved person from being sexually harassed in contravention of Division 2 by the person or persons.
(2) The FWC must start to deal with the application, to the extent that it consists of an application for a stop sexual harassment order, within 14 days after the application is made.
Note: For example, the FWC may start to inform itself of the matter under section 590, it may decide to conduct a conference under section 592, or it may decide to hold a hearing under section 593.
(3) In considering the terms of a stop sexual harassment order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the aggrieved person—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the aggrieved person to resolve grievances or disputes—those outcomes; and
(d) any matters that the FWC considers relevant.
(4) Despite subsection (2), the FWC may dismiss an application made under section 527F, to the extent that it consists of an application for a stop sexual harassment order, if the FWC considers that the application might involve matters that relate to:
(a) Australia’s defence; or
(b) Australia’s national security; or
(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or
(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.
Note: For another power of the FWC to dismiss an application under section 527F, see section 587.”
Consideration
Pursuant to s.527J(1)(b) of the Act, for the Commission to make orders with respect to an application under s.527J for an order to stop sexual harassment, it must be satisfied that the aggrieved person has been sexually harassed in contravention of Division 2, and that there is a risk that the aggrieved person will continue to be sexually harassed.
The leading authority on the application for an order to stop bullying and the capacity of the Commission to make an order in circumstances where the applicant is dismissed is in Gostencnik DP’s decision of Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another.[1] Whilst the current application is with regards to making a stop sexual harassment order where the Respondent has resigned his employment, it is my view that similar principles apply in that stop bullying orders can only be made if there is a risk of continued bullying.
Accordingly, in that case, Gostencnik DP held that:
“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.
[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.
[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”
This position was subsequently affirmed by the Full Bench in Obatoki v Mallee Track Health & Community Services and Others.[2]
It is not disputed that Mr Sorohan is no longer employed by Port City Meats. Therefore, there is no present risk that Mr Sorohan will continue to sexually harass Mr AB at work, noting that it is not necessary to determine if Mr AB was sexually harassed at work by Mr Sorohan. Accordingly, the requirements of s.527J(1)(b) cannot be satisfied.
Section 587(1) of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
In considering all of the circumstances, I am satisfied that there is no risk of Mr AB being sexually harassed at work pursuant to s.527J(1)(b) of the Act. I am also satisfied that as a result, the application has no reasonable prosects of success, and it is appropriate in all of the circumstances to dismiss the application.
Accordingly, the application is dismissed under s.587(1)(c) of the Act.
COMMISSIONER
[1] [2014] FWC 3408.
[2] [2015] FWCFB 1661 at [16].
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